State of Louisiana v. Biden ( 2023 )

Case: 22-30087 Document: 00516701635 Page: 1 Date Filed: 04/05/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 5, 2023
No. 22-30087 Lyle W. Cayce
Clerk
The State of Louisiana, by and through its Attorney General, Jeff
Landry; The State of Alabama, by and through its Attorney General,
Steve Marchall; The State of Florida, by and through its Attorney
General, Ashley Moody; The State of Georgia, by and through its At-
torney General, Christopher M. Carr; The Commonwealth of Ken-
tucky, by and through its Attorney General, Daniel Cameron; The State
of Mississippi, by and through its Attorney General, Lynn Fitch; The
State of South Dakota, by and through its Governor, Kristi Noem;
The State of Texas, by and through its Attorney General, Ken Paxton;
The State of West Virginia, by and through its Attorney General,
Patrick Morrisey; The State of Wyoming, by and through its Attorney
General, Bridget Hill,
Plaintiffs—Appellees,
versus
Joseph R. Biden, Jr., in his official capacity as President of the United
States; Cecilia Rouse, in her official capacity as Chairwoman of the Coun-
cil of Economic Advisers; Shalanda Young, in her official capacity as Act-
ing Director of the Office of Management and Budget; Kei Koizumi, in his
official capacity as Acting Director of the Office of Science and Technology Policy;
Janet Yellen, Secretary, U.S. Department of Treasury; Deb Haa-
land, Secretary, U.S. Department of the Interior; Tom Vilsack, in his
official capacity as Secretary of Agriculture; Gina Raimondo, Secretary,
U.S. Department of Commerce; Xavier Becerra, Secretary, U.S. Depart-
ment of Health and Human Services; Pete Buttigieg, in his official capac-
ity as Secretary of Transportation; Jennifer Granholm, Secretary, U.S.
Department of Energy; Brenda Mallory, in her official capacity as
Chairwoman of the Council on Environmental Quality; Michael S.
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No. 22-30087
Regan, in his official capacity as Administrator of the Environmental Protec-
tion Agency; Gina McCarthy, in her official capacity as White House Na-
tional Climate Advisor; Brian Deese, in his official capacity as Director of
the National Economic Council; Jack Danielson, in his official capacity as
Executive Director of the National Highway Traffic Safety Administration;
United States Environmental Protection Agency;
United States Department of Energy; United States De-
partment of Transportation; United States Depart-
ment of Agriculture; United States Department of In-
terior; National Highway Traffic Safety Administra-
tion; Interagency Working Group on Social Cost of
Greenhouse Gases,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:21-CV-1074
Before Wiener, Higginson, and Wilson, Circuit Judges.
Jacques L. Wiener, Jr., Circuit Judge:
On January 20, 2021, the Biden Administration issued an executive
order that re-established an interagency working group (“Working Group”)
to formulate guidance on the “social cost of greenhouse gases.” 1 That order
directed the Working Group to publish dollar estimates quantifying changes
in carbon, methane, and nitrous oxide emissions (collectively, “greenhouse
gases”) for consideration by federal agencies when policymaking. 2 The
1
See Exec. Order No. 13,990, § 5, 86 Fed. Reg. 7037 (Jan. 20, 2021) (“E.O.
13990”).
2
Id.2
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Working Group has since published “Interim Estimates” based largely on
the findings of its predecessor working group. 3
The Plaintiffs-Appellees States (“Plaintiffs”) challenge E.O. 13990
and the Interim Estimates as procedurally invalid, arbitrary and capricious,
inconsistent with various agency-specific statutes, and ultra vires. They ob-
tained a preliminary injunction in the district court. 4 Defendants-Appellants
(“Defendants”) appealed, and a panel of this court stayed the injunction. 5
We now dismiss this action because Plaintiffs have failed to meet their
burden to prove standing. Plaintiffs’ allegations of “injury in fact” rely on a
chain of hypotheticals: federal agencies may (or may not) premise their actions
on the Interim Estimates in a manner that may (or may not) burden the States.
Such injuries do not flow from the Interim Estimates but instead from
potential future regulations, i.e., final rules that are subject to their own
legislated avenues of scrutiny, dialogue, and judicial review on an
appropriately developed record.
I. Background
Presidents have long overseen federal agencies by requiring cost-
benefit analyses for review, both internally and by the public. 6 This practice
3
WORKING GROUP, TECHNICAL SUPPORT DOCUMENT: SOCIAL COST OF
CARBON, METHANE, AND NITROUS OXIDE, INTERIM ESTIMATES UNDER EXECUTIVE
ORDER 13990 (Feb. 26, 2021) [hereinafter INTERIM ESTIMATES].
4
Louisiana v. Biden, 585 F. Supp. 3d 840 (W.D. La. 2022).
5
Louisiana v. Biden, 2022 WL 866282 (5th Cir. Mar. 16, 2022).
6
“President Carter issued Executive Order 12,044 requiring cost-benefit analyses
(CBA) for rules with ‘major economic consequences.’ These early oversight efforts antic-
ipated two key objectives of current presidential review structures: improving the quality
and rationality of agency analysis, and ensuring agency consistency with broader presiden-
tial priorities.” Nina A. Mendelson, Jonathan B. Wiener, Responding to Agency Avoidance of
OIRA, 37 HARV. J.L. & PUB. POL’Y 447, 455 (2014).
3
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is a general administrative control employed by presidents to carry out their
duty to “take Care that the Laws be faithfully executed.” 7 The Reagan
Administration assigned this oversight to the Office of Management and
Budget (“OMB”), 8 and the Clinton Administration formally established the
existing regime of cost-benefit analysis: Before proposing any significant
action, 9 federal agencies must assess the costs and benefits of the regulation
and submit the resulting assessments to OMB’s Office of Information and
Regulatory Affairs (“OIRA”) for review. 10
OMB has historically issued guidance to federal agencies regarding
this process. One such document, “Circular A-4,” was issued in 2003 as a
compilation of regulatory best practices. 11 Relevant here, Circular A-4 rec-
ommends that federal agencies (1) consider domestic, rather than global,
costs and benefits, 12 and (2) use discount rates of 3 and 7 percent. 13 But OMB
7
U.S. CONST. art. II, § 3; see Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.
Ct. 2183, 2197 (2020) (quoting U.S. CONST. art. II) (“The entire ‘executive Power’
belongs to the President alone.”).
8
Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981).
9
Significant actions include those that are “likely to result in a rule that may . . .
[h]ave an annual effect on the economy of $100 million or more.” Exec. Order No. 12,866,
§ 3(f)(1), 58 Fed. Reg. 51,735 (Sept. 30, 1993).
10
Id. § 6(a)(3)(B)-(C). If an agency proceeds to justify an action with a resulting
cost-benefits assessment, it is subject to challenge under the Administrative Procedure Act.
See Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012) (“[W]hen
an agency decides to rely on a cost-benefit analysis as part of its rulemaking, a serious flaw
undermining that analysis can render the rule unreasonable.”)
11
OMB, CIRCULAR A-4 (Sept. 17, 2003).
12
“Your analysis should focus on benefits and costs that accrue to citizens and
residents of the United States. Where you choose to evaluate a regulation that is likely to
have effects beyond the borders of the United States, these effects should be reported
separately.” Id. at 15.
13
“Benefits or costs that occur sooner are generally more valuable” because people
“plac[e] a higher value on current consumption than on future consumption.” Id. at 32.
4
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expressly does not bind agencies to its methodologies. Circular A-4 warns
that agencies must “exercise professional judgment” using the best evidence
available. 14
A. The Working Group on the Social Cost of Greenhouse Gases
For more than a decade, federal agencies have considered the effects
of greenhouse gas emissions among a panoply of variables in their cost-
benefit analyses. 15 They did so on their own terms with each agency
considering and determining its own estimate of such costs based on studies
they deemed appropriate. 16 That changed in 2009 when the Obama
Administration took action to standardize such estimates. An interagency
working group (“Prior Working Group”) was formally convened to develop
a transparent and defensible method, designed for the rulemaking process, to
quantify the social costs of greenhouse gases. 17 The Prior Working Group
derived estimates from peer-reviewed models for translating emissions into
dollars. This work product was subject to public notice and comment, and to
review by the National Academies of Sciences, Engineering and Medicine
“To reflect this preference, a discount factor should be used to adjust the estimated
benefits and costs for differences in timing. The further in the future the benefits and costs
are expected to occur, the more they should be discounted.” Id.
14
Id. at 26-27.
15
See INTERAGENCY WORKING GROUP ON SOCIAL COST OF
CARBON, TECHNICAL SUPPORT DOCUMENT: SOCIAL COST OF CARBON FOR
REGULATORY IMPACT ANALYSIS UNDER EXECUTIVE ORDER 12866, at 3-4 (Feb. 2010)
(collecting examples of agency analysis of greenhouse gas emissions from 2008).
16
Id.
17
Id. at 1-2.
5
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(“National Academies”). All told, the process concluded in January 2017
when a final report was issued by the National Academies. 18
In March of 2017, the Trump Administration signaled a change in
policy and disbanded the Prior Working Group. 19 Its work product was
withdrawn as “no longer representative of governmental policy,” 20 but
federal agencies were not barred from “monetizing the value of changes in
greenhouse gas emissions resulting from regulations.” 21 Instead, agencies
reverted to making their own individualized estimates in a manner
“consistent with the guidance contained in OMB Circular A-4.” 22
That brings us to the subject of this challenge. In January 2021, the
Working Group was reconvened by the Biden Administration through
executive order. 23 That Working Group was tasked with developing Interim
Estimates, “appropriate and consistent with applicable law,” to be published
for use until revised estimates were issued to address the recommendations
of the National Academies. 24 Other than adjustments for inflation, the
Interim Estimates reflected the Prior Working Group’s 2016 findings. 25
OIRA issued complementary guidance around that time: “When an agency
18
NATIONAL ACADEMIES, VALUING CLIMATE DAMAGES: UPDATING
ESTIMATION OF THE SOCIAL COST OF CARBON DIOXIDE (2017).
19
Exec. Order No. 13,783, § 5(b), 82 Fed. Reg. 16,093 (Mar. 28, 2017).
20
Id. § 5(b).
21
Id. § 5(c).
22
Id.
23
See Exec. Order No. 13,990, § 5.
24
Id. § 5(b)(ii).
25
Notice of Availability and Request for Comment on “Technical Support
Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates Under
Executive Order 13990”, 86 Fed. Reg. 24,669 (May 7, 2021).
6
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conducts benefit-cost analysis pursuant to specific statutory authorities,”
those statutory provisions “must dictate whether and how the agency
monetizes changes in greenhouse gas emissions in the context of the agency
action.” 26 When a federal agency relies on the Interim Estimates to justify a
final action, it “must respond to any significant comments on those estimates
and ensure its analysis” is “not arbitrary or capricious.” 27
B. Ensuing Challenges
On April 22, 2021, Plaintiffs filed the instant suit in the Western
District of Louisiana, contending that E.O. 13990 and the Interim Estimates
are procedurally invalid, arbitrary and capricious, inconsistent with various
agency-specific statutes, and ultra vires. 28 This action does not directly
challenge any specific regulation resulting from the Interim Estimates.
On February 11, 2022, the district court granted Plaintiffs’ motion for
preliminary injunction and adopted their proposed order for injunctive
relief. 29 That court enjoined all Defendants from (1) adopting, employing,
treating as binding, or relying on the work product of the Working Group; (2)
using any estimates that are based on global effects, that do not use discount
rates of 3 and 7 percent, or do not comply with Circular A-4; and (3) relying
on or implementing Section 5 of Executive Order 13990 in any manner.
26
OIRA, SOCIAL COST OF GREENHOUSE GAS EMISSIONS: FREQUENTLY ASKED
QUESTIONS (June 3, 2021).
27
Id.28
A similar challenge was brought in the Eastern District of Missouri in March
2021. There, the district court dismissed the action for lack of standing. Missouri v. Biden,
558 F. Supp. 3d 754 (E.D. Mo. 2021). On October 21, 2022, the Eighth Circuit affirmed.
Missouri v. Biden, 52 F.4th 362, 366 (8th Cir. 2022).
29
Louisiana, 585 F. Supp. 3d at 870.
7
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Defendants appealed and moved this court to stay the district court’s
preliminary injunction pending appeal. A panel of this court granted the
stay. 30 This court declined to rehear the issue, and on May 26, 2022, the
Supreme Court declined to intervene. 31
II. LAW AND ANALYSIS
We begin and end with standing. 32 “Standing to sue is a doctrine
rooted in the traditional understanding of a case or controversy.” 33 This
doctrine “serves to prevent the judicial process from being used to usurp the
powers of the political branches,” and our review is “especially rigorous
when reaching the merits of the dispute would force us to decide whether an
action taken by one of the other two branches of the Federal Government was
unconstitutional” as Plaintiffs request here. 34
It is Plaintiffs’ burden to establish standing. 35 Plaintiffs must clearly
allege that they “(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” 36 Plaintiffs’ alleged injury must be
30
Louisiana, 2022 WL 866282, at *3.
31
Louisiana v. Biden, 142 S. Ct. 2750 (2022) (“Application to vacate stay presented
to Justice Alito and by him referred to the Court denied.”).
32
See Ordonez Orosco v. Napolitano, 598 F.3d 222, 225 (5th Cir. 2010) (reviewing
for standing de novo).
33
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
34
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
35
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
36
Spokeo, 578 U.S. at 338.
8
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“‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” 37 “Allegations of possible future injury” will not suffice. 38
Plaintiffs here allege that fiscal, procedural, and sovereignty-related
harms might arise from regulations molded by the Interim Estimates. Alt-
hough any one of these would satisfy “injury in fact,” we conclude that the
allegations here fail to do so. At the core of our conclusion is this: E.O. 13990
does not require any action from federal agencies. Agencies are neither pun-
ished nor rewarded for their treatment of the Interim Estimates. Agencies
must exercise discretion in conducting their cost-benefit analyses and decid-
ing to use the Interim Estimates as “appropriate and consistent with applica-
ble law.” 39 Since nothing in E.O. 13990 requires States to implement the In-
terim Estimates, Plaintiffs rely on harms wrought by regulations that may re-
sult from the Interim Estimates. It is well accepted that the mere “possibility
of regulation” fails to satisfy injury in fact. 40
Plaintiffs allege direct fiscal and economic harms from the Interim
Estimates because the resulting regulations would burden the States,
especially when “exercising their cooperative federalism functions and
administering environmental and energy regulatory programs,” and would
37
Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
38
Clapper, 568 U.S. at 409 (emphasis added).
39
See Exec. Order No. 13,990, § 5(b)(ii).
40
National Ass’n of Home Builders, 667 F.3d at 13 (“[Plaintiffs] face only
the possibility of regulation. . . . Any watercourse on their property may (or may not) turn
out to be subject to CWA dredging permit requirements because of a nexus (or not) with
the two Santa Cruz reaches”.); see Summers, 555 U.S. at 496 (finding no standing when the
challenged procedures “neither require nor forbid any action on the part of respondents. .
. [and instead] govern only the conduct of . . . officials engaged in project planning.”).
9
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impact the prices of “more heavily regulated goods and services.” 41 Their
citizens and industries would also be harmed by any resulting “job-killing
regulations” and restrictions on chemical manufacturing. 42 Plaintiffs’
allegations of harm are generally broad, but they describe two instances of
injury in practice: First, the Environmental Protection Agency (“EPA”) is
alleged to have indirectly “coerc[ed] the States to use” the Interim Estimates
through a “final rule imposing more stringent . . . Federal Implementation
Plans” under the National Ambient Air Quality Standards (“NAAQS”).
Second, the Interim Estimates would increase the cost estimates of oil-and-
gas lease sales under the National Environmental Policy Act (“NEPA”).
We find no “injury in fact” here, because Plaintiffs’ alleged harms
“rel[y] on a highly attenuated chain of possibilities.” 43 A federal agency must
factor the Interim Estimates into its deliberations on a rule that harms the
States. The actual rulemaking considerations of a federal agency are not
determinable in advance. Rather, an agency’s reliance on the Interim
Estimates when crafting a future regulation is mere conjecture. 44 Although
41
See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160-61 (1981) (“In alleging
that the bidding systems currently used by the Secretary of the Interior are incapable of
producing a fair market return, California asserts the kind of ‘distinct and palpable injury,’
that is required for standing.”); see also El Paso Cty., Texas v. Trump, 982 F.3d 332, 339
(5th Cir. 2020) (“The Supreme Court held that Wyoming had standing to sue because the
Oklahoma law caused Wyoming ‘a direct injury in the form of a loss of specific tax reve-
nues.’”).
42
See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607
(1982) (“One helpful indication in determining whether an alleged injury to the health and
welfare of its citizens suffices to give the State standing to sue parens patriae is whether the
injury is one that the State, if it could, would likely attempt to address through its sovereign
lawmaking powers.”).
43
Clapper, 568 U.S. at 410.
44
ASARCO Inc. v. Kadish, 490 U.S. 605, 614-15 (1989) (“[C]ourts cannot presume
either to control or to predict” how agency discretion will be exercised.).
10
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we have found standing when the economic costs of a challenged policy were
imminent and measurable, 45 the Interim Estimates are not certain to spawn
the alleged harms. A panoply of reasons can underlie a regulation, and
agencies are required to dictate and publicly report such reasons. 46 It is
through this process that we know that neither of Plaintiffs’ specific examples
of injurious regulation were brought about by the Interim Estimates: In both
instances, the relevant agencies reported that their decisions were not
45
See Texas v. United States, 40 F.4th 205, 216 (5th Cir. 2022) (challenging
Department of Homeland Security memoranda that established specific agency-wide
procedures and created immediate measurable effects on immigration enforcement), cert.
granted, 143 S. Ct. 51 (Mem) (July 21, 2022) (including issue of “[w]hether the state
plaintiffs have Article III standing”). Neither party has requested that we hold the instant
case for the pending decision in Texas v. United States, 143 S. Ct. 51, nor do we think that
delay is necessary: The Court will either affirm this Circuit’s decision on standing—where
plaintiff states presented a meticulous list of immediate injuries in stark contrast to our
case—or reverse, which sets a more stringent bar for standing in this matter.
46
SOCIAL COST OF GREENHOUSE GAS EMISSIONS: FREQUENTLY ASKED
QUESTIONS, at 2 (Federal agencies must “dictate whether and how the agency monetizes
changes in greenhouse gas emissions in the context of the agency action.”).
11
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premised on those Estimates. 47 The alleged harms would have occurred with
or without the Interim Estimates. 48
Plaintiffs’ deficiencies parallel those found by the Supreme Court in
the seminal case, Summers v. Earth Island Institute, where plaintiffs failed to
identify any specific “application of the challenged [United States Forest
Service] regulations.” 49 Specifically, plaintiffs fell short of their need to
allege how “any particular timber sale or other project claimed to be
unlawfully subject to the regulations will impede a specific and concrete plan
of [plaintiffs’] to enjoy the national forests.” 50 Here, Plaintiffs point to
financial harm related to their oil and gas leasing projects but fail to allege any
47
See Bureau of Land Management, DOI-BLM-UT-0000-2021-0007-EA,
Decision Record, Utah 2022 First Competitive Oil and Gas Lease Sale 2 (June 2022) (“The
[Environmental Assessment] analyzes emissions and the social cost thereof for
informational purposes only, and BLM has not determined to lease individual parcels (or
not) based on greenhouse gas emissions.”); see also 81 Fed. Reg. 53,308 (Aug. 12, 2016)
(“disapproving the portion of a Louisiana State Implementation Plan (SIP) submittal
pertaining to interstate transport of air pollution which will significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone [NAAQS] in other
states”); 81 Fed. Reg. 53,284 (Aug. 12, 2016) (“disapproving the portion of a Texas State
Implementation Plan (SIP) submittal pertaining to interstate transport of air pollution
which will significantly contribute to nonattainment or interfere with maintenance of the
2008 ozone [NAAQS] in other states”); 78 Fed. Reg. 14,681 (Mar. 7, 2013)
(“disapprov[ing] Kentucky . . . SIP submission with respect to certain interstate transport
requirements for the 2008 8-hour ozone NAAQS because the submission does not address
the statutory provisions with respect to the relevant NAAQS”).
48
See Sierra Club v. FERC, 827 F.3d 59, 68 (D.C. Cir. 2016) (“As a procedural
statute, NEPA does not mandate any particular outcome.”); see also Revised Cross-State
Air Pollution Rule Update for the 2008 Ozone NAAQS, 86 Fed. Reg. 23,054, 23,086-87
(explaining the multi-factor considerations for NAAQS).
49
Summers, 555 U.S. at 495.
50
Id.12
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specific lease or project that was rejected due to the Interim Estimates, 51 and
their remaining allegations stand on similar footing. 52 Because Plaintiffs
continue to rely on hypothetical harms, we find no reason to depart from the
Eighth Circuit’s parallel ruling in Missouri v. Biden that a coalition of plaintiff
states had no standing to challenge E.O. 13990 and the Interim Estimates. 53
Plaintiffs contend that they suffered a procedural injury because they
could not comment on the Interim Estimates, but it is well established that
the “deprivation of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is insufficient to
create Article III standing.” 54 Merely being “denied the ability to file
comments” is “insufficient to create Article III standing.” 55 This alleged
harm stands in vacuo, because the Interim Estimates, alone and without
further action from an agency, will not cause concrete harm. Plaintiffs bring
this action without challenging any specific agency action. If any harms
should stem from a resulting regulation, Plaintiffs are afforded avenues to
bring challenges when the extent of the Interim Estimates’ use in rulemaking
51
Plaintiffs could not name any lease or project that was rejected by virtue of the
Interim Estimates at oral argument either.
52
When queried at oral argument about the “best example of final agency action
that has caused concrete injury to a plaintiff state in this case,” Plaintiffs identified the
contents of an affidavit by the South Dakota Department of Transportation Secretary. But
the declaration’s assertion of harm is speculative and nonspecific. In fact, the affidavit does
not rely on the Interim Estimates’ figures but instead a federal “request[]” that South
Dakota develop a state-level greenhouse gas analysis. This evidence—apparently plaintiffs’
best—does not show injury nor traceability to the challenged action. When pressed further,
Plaintiffs’ counsel stated that they’ve sufficiently pointed to “the application of BLM
across the board to all their oil and gas leasing program to which [the Plaintiffs] are a part.”
This situation strikingly mirrors the deficient pleadings in Summers.
53
52 F.4th at 365–66.
54
Summers, 555 U.S. at 496.
55
Id.13
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is clear—not merely hypothetical—and is amenable to rigorous judicial
review.
Plaintiffs’ final attempt to identify injury stems from their sovereignty
which—under some circumstances—warrants a “special solicitude in the
standing analysis.” 56 They contend that the Interim Estimates “deprive the
[s]tates of freedom and discretion that they otherwise would have had in
administering [cooperative] programs . . . [and] does not depend on the
impact of a future agency action, because it immediately affects how States
participate in formulating agency actions.” However, this case lacks the
hallmarks of a state’s “special solicitude” for a familiar reason: Neither E.O.
13990 nor the Interim Estimates have a direct effect on Plaintiffs’ law or
policy. E.O. 13990 dictates that the Interim Estimates apply only to federal
“executive departments and agencies.” 57 The Interim Estimates provide no
“substantial pressure” for Plaintiffs to change their laws. 58 Regardless of the
applicability of the special solicitude, Plaintiffs must still satisfy the basic
requirements of standing which, as discussed, they do not. 59
Since Plaintiffs fail to establish injury in fact, we need not address the
remaining factors for standing. We observe, however, that traceability fails
for similar reasons. 60 E.O. 13990 does not itself mandate any particular
56
See Massachusetts v. EPA, 549 U.S. 497, 519 (2007).
57
Exec. Order No. 13,990, § 1.
58
See Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015) (“[S]tates have a
sovereign interest in ‘the power to create and enforce a legal code.’”).
59
See Massachusetts, 549 U.S. at 521; see also Arizona v. Biden, 31 F.4th 469 (6th Cir.
2022) (Special solicitude “does not allow [States] to bypass proof of injury in particular or
Article III in general”).
60
See California v. Texas, 141 S. Ct. 2104, 2113 (2021) (The second element of
standing requires that any alleged injury is “‘fairly traceable’ to the ‘allegedly unlawful
conduct’ of which they complain.”).
14
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regulatory action by a federal agency. In Plaintiffs’ own words, these
estimates would be used to merely “justif[y]” harmful regulations. Such
harms are traceable to possible agency actions, not to E.O. 13990 or the
Interim Estimates.
We conclude that Plaintiffs have not established standing here, which
ends our analysis. Plaintiffs contemplate harms that are several steps
removed from—and are not guaranteed by—the challenged Executive Order
or the Interim Estimates. The states cannot do away with their alleged parade
of horribles in a single swipe at the duly elected executive. Although the
“case-by-case approach that this requires is understandably frustrating [to
plaintiffs],” this remains the “the traditional, and remains the normal, mode
of operation of the courts.” 61
III. CONCLUSION
This is action is DISMISSED for lack of jurisdiction, and the district
court’s preliminary injunction is VACATED.
61
Lujan, 497 U.S. at 894 (“[M]ore sweeping actions are for the other branches.”).
15